North Carolina law prohibits a person who has been convicted of a felony from possessing a firearm. The prohibition, set forth in G.S. 14-415.1, contains narrow exceptions, such as for antique firearms. The question has arisen in several cases whether a person with a prior felony conviction may possess a firearm if necessary to defend himself or others—in other words, whether the person may rely on a justification defense. Continue reading
Tag Archives: felon in possession
Federal law and North Carolina law each prohibit in their own ways the possession of a firearm by a felon and, under federal law, certain domestic violence misdemeanors as well. A recent Fourth Circuit Court of Appeals case ruled that a North Carolina felony conviction did not qualify to prove the federal offense of possession of a firearm by felon. The fact that this conviction likely would qualify for the North Carolina offense leads to this post that provides a general overview of the differences. Continue reading →
Thirteen-year-old Nathan Clark and his teammates traveled from Winston-Salem to Raleigh last Friday night to play in a weekend soccer tournament. The team never took the field. As Clark slept in his hotel room Friday evening, a gun discharged in an adjacent room, sending a bullet through the wall and into the back of Clark’s head. Clark died before he could be transported to the hospital.
The man in the room next door, Randall Louis Vater, was a convicted felon who was prohibited by law from possessing a gun. Vater had been out of jail only two weeks, having been released on October 25 after serving a sentence for violating a domestic violence protective order. Vater was charged with involuntary manslaughter and possession of a firearm by a felon based on Clark’s death. He is being held in the Wake County Jail under a $1 million bond.
Authorities have said nothing about how the gun went off. Assuming that the discharge was accidental, could Vater be charged with first-degree murder under the theory of felony murder? Continue reading →
The court of appeals issued opinions today. I haven’t looked at all of them, but State v. Best jumped out at me because it provides an authoritative answer to a question that I have often been asked: when a defendant is convicted of possession of a firearm by a felon, may his prior felony (the one used to establish his status as a felon) be counted when calculating his prior record level?
I have heard the argument that allowing the prior felony to contribute to the defendant’s prior record level is double counting, because it is already being used to satisfy an element of the offense, and so should not be permitted. Some support for this point of view comes from the habitual felon context, where any prior felony that is used to establish a defendant’s status as a habitual felon may not be used in determining the defendant’s prior record level. G.S. 14-7.6. Cf. also State v. Gentry, 135 N.C. App. 107 (1999) (applying the same principle to habitual DWI).
In Best, however, the court of appeals rejected that argument. The court relied in part upon State v. Harrison, 165 N.C. App. 332 (2004) (holding that a sex offender’s prior reportable conviction could be used both to establish that the offender was required to register and to contribute to his prior record level after his conviction for failing to register). It also noted that it had previously rejected a similar argument in two unpublished opinions. And finally, it drew a distinction between habitual offender laws (where the question is whether the punishment for an already unlawful act, such as DWI, can be ratcheted up twice as a result of the defendant’s prior record — once by making the DWI a habitual offense, and then again through the defendant’s prior record level) and possession of a firearm by a felony (where the act in question, possession of a gun, is not inherently unlawful, and the defendant’s prior record is used once to make the conduct unlawful and once to ratchet up the defendant’s sentence).
Sentencing is Jamie’s area, so perhaps he will have more to add about this decision. But because it is an issue that comes up so often, I wanted to get the word out immediately.